When can I get divorced after separation?

When can I get divorced?

In Australia, you and your former spouse are eligible to file an Application for Divorce when you have been living separately and apart for at least 12 months, and there is no prospect of a reconciliation.  

Separation happens when you and your partner stop living in a marriage-like relationship.  Generally, but not always, it happens when you stop living together.

There are no prospects of reconciliation when you and / or your former spouse believe the relationship cannot be restored.  

Refer to our de-facto relationships article to know more about this topic

What if I have been married for less than 2 years?

If you have not been married for at least two years, you will need to attend Reconciliation Counselling with a Family Councillor prior to filing an Application for Divorce.

If you cannot attend Counselling, you will need to explain why in an Affidavit attached to your Divorce Application and attend Court.

Do I need my former partner to file for divorce?

You and / or your former spouse can:

1. Make a sole Application for Divorce and divorce the other party by themselves; or

2. File a joint Application for Divorce.

 

What is required for a Sole Application?

In the event you file a sole Application for Divorce, you will need to:

1. Prove service; and

2. Attend a Divorce Hearing or instruct a lawyer to attend on your behalf if:

1. 1. You have children under the age of 18; or 

2. 2. Your ex-partner lodges an objection to the divorce, which says you have not been separated for 12 months or says the Court does not have the power to grant the divorce.

What are the benefits of a Joint Application?

In our experience, it is far easier to get parties to simply sign a joint Application for Divorce to avoid:

1. The cost of sending a lawyer to a Court Hearing;

2. The cost of proving service of the Application; and

3. It makes the process far more streamlined.

What if we still reside under one roof?

Typically, post-separation, there are a growing number of cases whereby people reside under the same roof for an extended period of time due to financial pressures, the pending rental crisis in Western Australia or due to family circumstances.  

This adds a level of complication to a Divorce Application if this means you have not lived apart for two years.  This is because in the event you have been living separately and apart under one roof, you will need to obtain independent evidence from an adult third party who knew you and your former spouse prior to the separation and can confirm it occurred.

Whilst this is not difficult in many cases, some people often cannot call such a witness.  If this is your situation, you can usually only:

1. Find a witness who files an affidavit on behalf of you, your former spouse or both of you; or

2. Wait until 12 months following the date you and your former spouse cease residing under the same roof.

We are here to help!

If you require assistance with divorce and separation, no fault divorce, child and parenting matters, child support agreements and family court proceedings in Western Australia, our family law firm is here to help.  Our experienced family lawyers can assist you with making a sole Divorce Application, proving you have been separated under one roof, and any other aspects of your case.  

Contact us today to schedule a consultation, or visit our Frequently asked questions section to know more.